Town of Southampton GIS

The Supreme Court, Suffolk County recently upheld a determination of the Southampton Town Zoning Board of Appeals (“ZBA”) perhaps ending a lengthy and controversial review of the development of a day camp on residentially zoned property with frontage on Little Fresh Pond. The subject property is located at 665 Major’s Path in North Sea, Southampton, on a 16.8 acre parcel, in the R-20 Zoning District. The property was improved with a pre-existing nonconforming tennis club/tennis camp and the owners sought to use the property as a day camp.

In March of 2012, the ZBA issued a determination in response to the neighbors appealing a Building Inspector Determination. The ZBA found that the proposed renovations and expansion of the operations on the property from a “tennis club/tennis camp” to a “day camp” represented a change from one nonconforming use to another since the uses “were not compatible or interchangeable, pursuant to the Standard Industrial Code.” The ZBA further found that the property owner must seek a variance from the ZBA under Southampton Town Code §330-167(B)(3) for its proposed “day camp” use. That determination went unchallenged.

After this initial 2012 determination, the property owner sought an interpretation from the Building Inspector (who then referred the matter to the ZBA) as to whether adding a pool and sports court to the site represented an expansion of the pre-existing nonconforming use requiring a variance. In December of 2012, the ZBA issued a determination that the replacement of a tennis court with a swimming pool and sports court did not constitute an impermissible expansion of a nonconforming use or a change of use requiring a variance. Rather, the ZBA found that adding the pool and sports court were “customary and incidental” to the pre-existing nonconforming tennis club and/or tennis camp use of the property. The neighbors brought an Article 78 Proceeding and made a motion to the Supreme Court, Suffolk County for a temporary restraining order/preliminary injunction seeking to stay the construction of the swimming pool. By decision entitled, Little Fresh Pond Association et al. v. Town of Southampton Zoning Board of Appeals et al., Index No. 02258/13, dated April 10, 2013, the Court denied the motion for the TRO/Preliminary Injunction. Specifically, the Court found that “there is no meaningful irreparable harm discernable from the construction and putative use of the pool” and that petitioners’ arguments were speculative. This case was reported as disposed on 2/24/14 without a final determination referenced or available on “e-courts”.

Thereafter, the property owner applied to the ZBA for a change in nonconforming use. Specifically, the property owners sought to change from a tennis club/camp to a day camp for children pursuant to Town Code §330-167(B)(3) which states:

In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in § 330-166B and C and to the provisions which follow.

(3) To grant a certificate of occupancy for a change in a nonconforming use, provided that:

(a) 

The Board of Appeals shall have made a determination that such change will be beneficial to the general neighborhood.

(b) 

Such change is made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.

In March of 2019, the ZBA granted the variance determining that the change from the tennis club/tennis camp use to a tennis club and/or day camp was beneficial to the general neighborhood. The neighboring property owners and a not-for-profit organized to protect Little Fresh Pond brought the Article 78 Proceeding entitled The Little Fresh Pond Association et al. v. Zoning Board of Appeals of the Town of Southampton and Southampton Day Camp Realty, LLC, Index No. 1910/2019, dated October 10, 2019 challenging the ZBA determination. The petitioners argued that the ZBA exceeded its authority under Town Code §330-167(B)(3) by adding a second, new non-conforming use of the property, namely the day camp use, that required a use variance under New York State Town Law §267-b(2). Petitioners stated that the day camp was a “separate, incompatible and non-interchangeable use from the tennis club and accessory tennis camp.”

The Court found that the ZBA fully considered the standard of review for the application, including the “extent, nature and location of activities” to be conducted on the property in its March, 2012 determination. The Court noted that the ZBA could have required an application for a use variance but declined to do so. The Court held there was an “insufficient basis presented for the Court to find that the Town exceeded its authority in making its determination” and refused to consider that the approved change in nonconforming use was actually an authorization of two separate uses. Moreover, the Court concluded that the ZBA did not err as a matter of law in applying Southampton Town Code §330-167(B)(3) and that its decision was neither arbitrary nor capricious. Ultimately, the petition was denied.

 

 

In Matter of Weissmann, 2019 NY Slip Op 06170 (2d Dep’t 2019), the Special Prosecutor for the Village of Spring Valley Justice Court received a two-year suspension from the practice of law for helping select defendants favorably dispose of parking tickets at the direction of a Village Trustee. This cautionary case serves as a poignant reminder for private practitioners who cross the threshold into public service in their local municipalities.

Mr. Weissmann was appointed as Special Prosecutor for the Village’s Justice Court to prosecute traffic tickets and zoning violations. While serving in this capacity, and at the behest of a Village Trustee, counsel submitted false documentation to the Village Justice to justify favorable plea dispositions. The Trustee attended plea negotiations sessions, met with the defendants and, on occasion, directed the Special Prosecutor as to how to dispose of the charges.

Specifically, in November 2016, a defendant, charged twice with illegally parking in a handicapped parking spot, met with the Trustee. The Trustee instructed the Special Prosecutor to “remember [the defendant].” Later, during plea negotiations, the Special Prosecutor advised the defendant to pretend she possessed a handicapped placard, and that the placard had fallen inside of her vehicle – despite counsel knowing full-well that the defendant had no such placard. In support of the Special Prosecutor’s application to dismiss the parking tickets,  counsel filed a traffic infraction plea agreement with the Justice Court, wherein he falsely stated the defendant had a disability placard that had  fallen to the floor of her car.

A misdemeanor complaint was filed against the Special Prosecutor charging him with “unauthorized exercise of [his] official functions.” In June 2018, the Special Prosecutor pleaded guilty to “official misconduct” in violation of N.Y. Penal Law Section 195.00(1). In September 2018, the Village Justice Court sentenced counsel to two years’ probation, among other things. The Ninth Judicial District Grievance Committee moved to suspend counsel from the practice of law based upon its determination that the attorney had been convicted of a “serious crime” pursuant to N.Y. Judiciary Law Section 90(4)(d); the Special Prosecutor cross-moved, arguing his conviction did not constitute a serious crime, and seeking to vacate the suspension in exchange for a lesser punishment. The Appellate Division, Second Department, recently granted the Committee’s motion.

Section 90(4)(d) of the Judiciary Law defines “serious crime” as “any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime.”

Section 195.00(1) of the Penal Law defines “official misconduct” as follows: “[a] public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized.” Official misconduct is a class A misdemeanor.

The Second Department held that the Special Prosecutor’s official misconduct is a serious crime: “a public servant who commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized, necessarily engages in deceitful conduct. . . . [T]he element of deceit, one of the enumerated statutory elements, is present and, accordingly, ‘official misconduct’ is a ‘serious crime’ as defined by [the] Judiciary Law.”

With respect to the measure of discipline, the Special Prosecutor requested a censure or a six-month suspension, given certain mitigating factors, including his remorse, his acceptance of full responsibility, and his disciplinary record (which only contained one letter of caution). The Second Department rejected this request, stating that it “cannot overlook the fact that the crime committed here epitomizes the kind of corruption at the heart of the judicial system that undermines the public’s trust in the courts and their delivery of fair and evenhanded justice.” Counsel, serving as Special Prosecutor, fabricated evidence to secure dismissal – knowing this behavior was wrong and improper. Under the totality of the circumstances,  a two year suspension is warranted. Notably, although counsel is prohibited from practicing law, he must comply with all applicable continuing legal education requirements and surrender his secure pass, among other things.

A recent Second Department decision, Matter of Reddock v New York State Dept. of Envtl. Conservation, highlights a unique procedural quirk involving Article 78 proceedings where the challenge is based upon “substantial evidence”.

The petitioners in Reddock own a 2.07-acre parcel of property in the Town of Smithtown adjacent to the Nissequogue River (the “Property”) and within the Nissequogue Recreational River Corridor (the “Corridor”), as defined in New York Environmental Conservation Law Section 15-2714(3)(ee), part of the Wild, Scenic and Recreational Rivers System Act (the “WSRRSA”).  The Property is improved with a single-family dwelling and a detached accessory structure.  Pursuant to the implementing regulations of the WSRRSA, lots located within the Corridor must be a minimum of two acres in size (see 6 NYCRR 666.13 [C] [2] [b], note [iii]).  The petitioners sought to subdivide the Property into two separate lots of one acre and 1.07 acres.  Their proposal involved the removal of the accessory structure and the construction of a new dwelling on the slightly larger lot.

The petitioners applied to the New York State Department of Environmental Conservation (the “DEC”) for a permit and area variance to allow them to subdivide the Property in accordance with their proposed plans.  However, after an evidentiary hearing before an Administrative Law Judge, the DEC denied their application in its entirety “because, inter alia, the proposed subdivision would increase area density and pollution into the river . . . .”

Thereafter, the petitioners commenced an Article 78 proceeding appealing that denial, arguing that it “did not have a basis in substantial evidence, or was otherwise arbitrary and capricious,” because the DEC failed to properly consider all of the relevant factors necessary for an area variance.

CPLR § 7803(4) permits courts to review whether an administrative “determination made as a result of a hearing held, and at which evidence was taken, . . . [is] supported by substantial evidence” (CPLR § 7803 [4]).  However, when an Article 78 proceeding challenges a determination based upon substantial evidence, the court must first address other objections in law that could terminate the proceeding, and if there are none, it must transfer the case to the Appellate Division to decide the issue of substantial evidence (see CPLR § 7804 [g]).

That is precisely what occurred in Reddock. When the petitioners raised the issue of substantial evidence, the DEC promptly requested transfer to the Appellate Division for disposition on that issue.  Here, because there were no other objections which could terminate the proceeding, the court did just that.

In the Appellate Division, the Second Department’s inquiry into substantial evidence turned on whether there was “‘relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ (Matter of Mangels v Zucker, 168 AD3d 1060, 1061 . . . .)”.  In so deciding, the Second Department concluded that the DEC’s denial of the petitioners’ application was supported by substantial evidence and that, in rendering its determination, the DEC “was entitled to consider the precedential effect that granting a variance to the petitioners would have on future applications for [non-compliant] subdivisions.”

In addition to the interesting facts and substantive issues that this case offers, it also serves as an important reminder to litigators to be aware of unique procedural rules that may apply to certain proceedings.

In May 2019, National Grid – the utility company that provides natural gas to approximately 1.8 million customers in Brooklyn, Queens, Staten Island and Long Island – announced a moratorium on the processing of applications for new gas service.  The moratorium was imposed following a May 15, 2019 Decision by the New York State Department of Environmental Conservation’s (DEC) denying a water-quality permit for a portion of a proposed 23-mile underwater gas supply pipeline, known as the Northeast Supply Enhancement (NESE) Project.  Since that time, National Grid has denied about 2,600 requests for gas service from new residential, commercial and industrial customers.

According to National Grid, the region’s demand for natural gas is expected to rise by 10 percent over the next decade and, without the NESE, its existing infrastructure simply does not have the ability to handle this increased demand.  The NESE seeks to expand the existing 10,000-mile Transco pipeline system that currently serves the northeastern and southeastern states.  The NESE would deliver an additional 400 million cubic feet a day of fracked natural gas from Pennsylvania, through New Jersey, and beneath Raritan Bay and Lower New York Bay, to an existing connection located three miles off the coast of Rockaway, Queens.  If completed, National Grid says the pipeline would increase the company’s capacity by 14 percent.  In July 2019, National Grid’s residential customers received an email stating that it would not be able to expand gas service unless the NESE pipeline is approved, and urged customers to sign a petition “to express support for this critical energy project” that would be sent to Governor Andrew Cuomo, the DEC, and federal, state and local elected officials.

Some opponents of the pipeline, including Governor Cuomo and New York City Mayor Bill de Blasio, argue that it would further the region’s reliance on fossil fuels and is incompatible with the state’s goals to shift to renewable energy in the coming years.  Other opponents claim that the pipeline will have significant adverse impacts on the environment.  In a May 15, 2019 Press Release announcing its decision to deny the permit application for the NESE, the DEC said that “construction of the proposed project would result in significant water quality impacts from the re-suspension of sediments and other contaminants, including mercury and copper” and “would cause impacts to habitats due to the disturbance of shellfish beds and other benthic (bay-bottom) resources.”  Many have been critical of National Grid’s actions, claiming that the moratorium is nothing more than a political ploy to get the pipeline approved.

As the standoff between the State and National Grid continues, residents and businesses, and even the region’s economy, are suffering hardship from the inability to connect to natural gas service.  According to Vision Long Island, a nonprofit smart growth advocacy group, the moratorium is having an economic impact on downtowns and small businesses that has gone mostly unreported.  The LI Herald reported back in June that the Mayor of the Village of Lynbrook has said that there are multiple businesses in the village that are ready to open, but can’t do so without gas service, causing “a tremendous hurt to the village.”

Large-scale developers of residential, mixed-use and civic projects are also experiencing significant financial hardship from the moratorium.  This is particularly true where projects were under construction prior to the moratorium and reasonably expected to connect to gas service.  These projects either sit unoccupied waiting for the moratorium to end, or have incurred the additional expense of converting their heating, cooking and back-up generator systems, to alternative energy sources, such as electric, oil and propane, which are all more costly and produce greater greenhouse emissions.  For example, the recently completed 30-unit Blake Hendrix affordable housing project in Brooklyn was denied a gas hook up in June, and now the project sits vacant causing the developer to lose about $30,000 per month.  In Commack, the developer of a nearly completed 64-unit assisted living facility that previously received a gas availability letter from National Grid, but did not submit a complete connection application prior to the moratorium, was forced to make a last minute conversion to propane, rather than have its building sit unoccupied.  The developers of a new arena at Belmont Park have made similar contingency plans to have the project served by propane if a natural gas connection is unavailable.

While the moratorium remains in place, National Grid began restoring service to over 1,100 customers who previously disconnected from the system after Governor Cuomo threatened in October to impose millions of dollars in fines against the company.  It is not, however, taking actions to provide new service connections.  On November 12, 2019, Governor Cuomo issued a letter to National Grid giving notice of the State’s intent to revoke the utility company’s certificate to operate its downstate gas franchise.  The Governor also threatened National Grid with legal action if the gas provider doesn’t find a way to take on new customers.

As the months-long wrangling continues, residents and local businesses are stuck in limbo and will continue to endure significant financial hardship until the fate of the region’s gas supply is determined.  In light of the Governor’s recent actions, and National Grid’s commitment to restore service to its previous customers, those still affected by the moratorium are hopeful that this standoff will come to an end soon.

 

Several prior blog posts discussed standing requirements under the State Environmental Quality Review Act (SEQRA) and the timeliness of challenging a SEQRA determination. A decision from the Appellate Division, Third Department, Schulz v Town Board of the Town of Queensbury, issued on October 24, 2019, involved both of these elements and was a one-two punch that knocked out a challenge to a municipal decision. Here are the pertinent facts.

The Town of Queensbury Sanitary Sewer Project 

The Town of Queensbury began considering establishing a sanitary sewer district for a portion of the Town in 2013. The Town determined the project was an Unlisted Action under SEQRA and in January 2016, the Town Board adopted a resolution indicating it intended to serve as Lead Agency.  At the conclusion of its September 12, 2016 public hearing on the proposal, the Town Board completed its review under SEQRA and issued a negative declaration, finding that the proposed sewer district would not have any potential significant adverse environmental impacts. The Town then approved a resolution to establish the sanitary sewer district, subject to a permissible referendum. Notice of the adoption of the resolution was thereafter published and no petition for referendum was filed.

In December 2016, the Town submitted an application for approval of the district to the State Comptroller, which was granted on November 10, 2017. The Town then adopted the final order establishing the sanitary sewer district on November 20, 2017. In January 2018, the Town Board adopted a resolution authorizing the issuance of approximately $1.9 million in serial bonds and bond anticipation notes to pay for the cost of the project. On March 1, 2018, the Town closed on $325,000.00 of the authorized financing.  On July 2, 2018, the Town Board accepted a bid to construct the sanitary sewer project.

Mr. Schulz did not participate in the public hearing that preceded the SEQRA negative declaration and sewer resolution. Rather, at the October 2016 Town Board meeting, he read into the record and submitted a “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” He submitted another “Petition for the Redress of Grievances” at the June 4, 2018 Town Board meeting. The Town did not respond to either of these documents.

On July 2, 2018, Mr. Schulz commenced an action against the Town Board and Town officials, seeking declaratory and injunctive relief and a temporary restraining order to stop the project. The Town cross-moved to dismiss the action, which cross-motion was granted by the trial court.  In the Trial Court Decision, issued September 19, 2018, the trial court determined that Mr. Schulz’s SEQRA claims were time-barred. The trial court also ruled that his constitutional claims failed to state a claim. Mr. Schulz’s motion to reargue and renew was subsequently denied by the trial court.

The Appellate Division Decision

On appeal to the Appellate Division, Third Department, the Court first evaluated the SEQRA issue and determined that Mr. Schulz lacked standing. The Court noted that Mr. Schulz failed to show how he would suffer direct harm and also failed to demonstrate how his claimed injury was different from an injury to the public at large. The Court pointed out that Mr. Schulz did not reside in the Town and that while part of his homestead may have straddled the Town boundary line, his property was 15 miles away from the sanitary sewer district.

The Court was equally blunt about the untimeliness of his SEQRA challenge. The Court noted that the negative declaration was issued in September 2016 and the final approval of the sewer district occurred in November 2017. His lawsuit was commenced almost eight months later, in July 2018. The Court ruled that Mr. Schulz could not skirt the four-month statute of limitations applicable to a SEQRA challenge by casting his claims in the form of declaratory or injunctive relief causes of action. Furthermore, his allegations that he was entitled to a longer period of time to sue because he claimed the Town Board knowingly lied in the SEQRA documentation which prevented him from suing sooner was rejected by the Court because he had not included a separate cause of action for fraud.

The Court also rejected his constitutional claims, noting that Mr. Schulz was not prevented from filing his “grievance petitions,” but also noting that nothing required the Town to listen or respond to these petitions.  The Court stated that “[r]equiring a response to every petition, especially in this digital age in which petitions can be copied and circulated with great speed and ease, could create a crushing burden on governmental agencies and officials and waylay them from performance of their duties.”

 

 

The Appellate Division recently issued a decision that explained why a massage therapist and the American Massage Therapy Association, (AMTA), a professional organization of massage therapists, lacked standing to challenge a local law enacted by the Town of Greenburgh.  At issue in Matter of American Massage Therapy Association v Town of Greenburgh  was  a  local law that  required massage therapists to obtain licenses from the Town.  The local law was inapplicable to solo practitioners.

The petitioners contended that the enactment of the local law violated the State Environmental Quality Review Act (SEQRA) and the Open Meetings Law.  They also contended that the local law was preempted by state law.

The appellate court affirmed the dismissal of the proceeding by the trial court, noting that petitioners lacked standing to challenge the local law.  First, the appellate court explained that standing requires a party to have “an interest in the claim at issue to the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.”   More particularly, the  petitioner must establish “an injury in fact that falls within the relevant zone of interests sought to be protected by law.”   An injury in fact requires a showing that the petitioner “will actually be harmed by the challenged action, and that the injury is  more than conjectural.”   The Court also noted that an organization must demonstrate that at least one of its members  has standing in order it to have standing.

As the individual petitioner was a solo practitioner and expressly exempted from coverage by the local law, the Court found that the therapist did not have standing because any supposed injury that therapist could sustain was conjectural. As to the AMTA, the Court determined that it failed to establish standing as it did not present any evidence that the individual petitioner or any other member was covered by the local law.

Residents of the Village of East Williston have prevailed (for now) over the East Williston Union Free School District’s plan to install a six-foot tall perimeter fence at the North Side School in the Village of East Williston, Nassau County. On October 4, 2019, Judge Sharon M.J. Gianelli handed down a Decision and Order (‘Decision”) enjoining the School District from completing construction of the fence until it receives a determination from the “local zoning body.” However, actually getting that approval could be another battle for the School District because the fence exceeds the maximum height allowed under the Village’s zoning laws. Consequently, the School District will likely need an area variance—a discretionary approval—from the Village Zoning Board.

The controversy in Cuomo v. The East Williston Union Free School District (Nassau County Index No. 611616/2019) revisits the issue of whether and to what extent a school district is (or is not) exempt from local zoning regulations. As Judge Gianelli’s decision makes clear, school districts do not enjoy “blanket and absolute immunity” from zoning. Decision at p. 14. Rather, the answer to the immunity question turns on whether there is a conflict between the local zoning and any state law or regulation on the same issue. Id. If no conflict exists, local zoning regulations will likely apply.

The legal precedent Judge Gianelli cites in Cuomo also touches upon the related and important topic of how school districts are to be treated, generally, when seeking local zoning approvals, such as special permits and variances. As a general rule, schools are entitled to “[g]reater flexibility than would attach to applications [ ] made by commercial institutions.” Matter of Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 AD3d 179, 185 (3d Dept 2017) (citing Matter of Lawrence Sch. Corp.v. Lewis, 174 AD2d 42 [2d Dept 1992]). In other words, schools are entitled to “special treatment” based on a “presumption that religious [and] educational uses of property are always in furtherance of the public health, safety and morals.” Cornell Univ. v. Bagnardi, 68 NY2d 583, 589 (1986) (cited in Matter of Ravena). The finger on the scale tips even further toward favorable zoning treatment where the imposition of reasonable conditions can counteract or mitigate any adverse impacts associated with the requested approval. Id. at 596.

The foregoing rule, of course, is not absolute. As the Court of Appeals wrote in Cornell University,

The controlling consideration … must always be the over-all impact on the public’s welfare. Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects. The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.

68 NY2d at 595 (internal citations omitted).

The Third Department’s decision in Matter of Ravena provides an apt example of this doctrine in practice. There, the school district sought variances from the local zoning board of appeals to legalize an electronic sign it installed adjacent to a public road. After concluding that the district was indeed subject to the respondent town’s zoning regulations, see 156 AD3d at 182-185, the court ruled that the zoning board of appeals’ decision denying the district’s request for variances was rationally based on traffic safety concerns created by the sign. Id. at 185-85. Accordingly, the school district’s challenge of the denial was properly dismissed. Id. at 186.

A fundamental issue for the School District in Cuomo was that it never applied for a building permit for its fence in the first place. Therefore, to the extent the District might be entitled to greater flexibility of the Village’s zoning laws, it is still an open question whether the Village will approve a perimeter fence that exceeds the height restriction applied in the rest of the community.

According to the Decision, the School District has appealed Judge Gianelli’s injunction against completion of the fence to the Appellate Division. Decision at p. 5. The case is, therefore, an evolving matter with more to come.

A copy of Judge Gianelli’s Decision and Order is available on the NYS Unified Court System’s website at https://iapps.courts.state.ny.us/webcivil/FCASSearch?param=I (search: 611616/2019, click on Index Number, click on “Show efiled Documents”).

Legal pre-existing nonconforming uses (aka grandfathered uses) have a tenuous existence in New York.  Although protected by vested property rights in the Constitution, many local zoning ordinances seek to eliminate these vestigial uses with regulations that hinge on continual use.  The allowance of nonconforming uses by the courts has been grudgingly tolerated, with the ultimate goal of the zoning code to have these now prohibited uses eventually eliminated.

Recently, the Town of Smithtown Board of Zoning Appeals denial of a legal nonconforming concrete manufacturing plant was overturned by the Court,  because the use was not  “abandoned” under the Town Code. See, KPE II, LLC v Town of Smithtown Board of Zoning Appeals.

The Smithtown Town Code provides that a certificate of existing use (CEU) will not be issued where a “lawful nonconforming use…is abandoned for more than 12-months…” (emphasis added). See Town Code §377-22.

In New York, the right of a property owner to continue a nonconforming use may be lost through “abandonment” of such use. Binghamton v Gartell, 275 AD 457 [3d Dept 1949].  Importantly, “abandonment” requires intent which is a voluntary and affirmative act.  Moreover, it means something more than a mere suspension, temporary non-occupancy of a building or site, or temporary cessation of business even though such discontinuance of activities may have existed over a considerable period of time Id. 

“Abandonment” of a nonconforming uses requires the occurrence of two elements: (1) an intention to abandon or relinquish; and (2) some overt act, or some failure to act, which carries the implication that the owner neither claims nor obtains any interest in the subject matter of the abandonment Id. (emphasis added).  Thus, abandonment, or more precisely an intention to abandon, cannot be presumed but must be based on an affirmative action by the one who is abandoning.

As stated by the Court in Binghamton, time is not an essential element of abandonment.  Mere non-use of property over a period of time, when unaccompanied by any other acts indicating an intention to relinquish or abandon title thereto or ownership thereof, does not amount to an abandonment.  Id.

Furthermore, the courts have continuously held that in order to find abandonment of a non-conforming use, the intent to abandon must be coupled with the actual and complete discontinuance of the nonconforming use. Eccleston v Town of Islip Zoning Bd. Of Appeal, 40 AD3d 854 [2d Dept 2007].

In comparison, where a zoning ordinance provides for the termination of a nonconforming use after the “discontinuance” of such use over a specified period of time, there is no inquiry as to the owner’s intent to abandon. Matter of Sun Oil Co. v Town of Harrison, 57 AD 2d 627 [2d Dept 1977].  Timing is everything when it comes to termination of a nonconforming use by discontinuance.

By  definition, that rule was not applicable in KPE II LLC v Smithtown, because the Town Code operates under the “abandonment” doctrine, and thus requires intent.  Accordingly, the fact that the former owner of the KPE II, LLC site may not have operated the site robustly does not rise to the level of having the intent to abandon it.  Thus, in Smithtown the requirements for a CEU are premised on abandonment, and distinct from code provisions in other jurisdictions which rely merely on the discontinuance of the use over a period of time.

The record in KPE II, LLC clearly supported the conclusion that  there was never any intent to abandon operations at the site.  While the use as a concrete manufacturing facility may have diminished for a period of time, that did not constitute abandonment.  As a result, the use as a concrete manufacturing plant in a now residential community is still permitted.

The moral of the story: if you have a pre-existing legal nonconforming use and are considering ceasing operations to renovate or replace structures, beware of giving up your non-conforming status; and check your local zoning ordinance for abandonment or discontinuance language.

 

Town of Southampton GIS E-Portal Map

 

The Village of North Haven is a peninsula of land located on Noyac Bay in the Town of Southampton near Sag Harbor. Pursuant to Village Code §163-48(A), site plan review shall be required for “any proposed construction of a single family residence or accessory structure which is on land with a waterfront…” In November of 2012, Jeffrey Friedman submitted an application for site plan review to construct a rock revetment to alleviate erosion on the bluff on his property located at 44 On the Bluff, North Haven. On October 15, 2018, the Planning Board denied the site plan application. Mr. Friedman (hereinafter “Petitioner”) appealed, bringing an Article 78 Proceeding in New York State Supreme Court. Petitioner argued that the Planning Board should have approved its proposed rock revetment because a majority of bluff-front parcels in the Village are protected by similar structures, the property is similarly situated to another property with a rock revetment located at 4 On the Bluff which the Planning Board approved, and Petitioner responded to all of the Planning Board’s concerns and submitted substantial evidence including expert reports evidencing that the rock revetment was warranted.

In its denial, the Planning Board distinguished the rock revetment at 4 On the Bluff because the property is located on the northwest point of the Village which suffers worse storm impacts due to its location and has less protective beach elevations.  Petitioner’s property is located in the center along a “long stretch of unarmored coastal bank and the construction of a rock revetment along this section of coastline would result in erosion at the ends of the revetment which would be difficult to control.” Additionally, the Planning Board found that construction of hard structures, like revetments, reduce the resiliency of the coast and  adversely impact the shoreline resulting in increased erosion.  The Planning Board further found that nearby properties had success in preventing erosion using soft solutions such as vegetation and coir mats.

The Supreme Court, Suffolk County by Vincent J. Martorana, J.S.C., in its decision dated July 11, 2019, reviewed the standard of review in an Article 78 Proceeding as limiting the court review to whether the Planning Board decision was “arbitrary and capricious, or an abuse of discretion and further, whether or not it was rationally made based upon the facts before it.” The Court further noted the broad discretion afforded to Planning Board determinations. Since the Village of North Haven requires site plan approval for the revetment, even though its accessory to a single family residence, the Court relied on New York State Village Law §7-725-a authorizing the Planning Board to consider the impact of the proposed project on adjacent land uses (among others).  The Court’s reliance on New York State Village Law for its site plan standards in determining the authority of the Planning Board’s review in this matter is significant because the Village Code lacks specific standards for coastal structures such as revetments intended to alleviate erosion. Ultimately, the Court denied the Petition “in all respects” finding that the approval of the revetment at 4 On the Bluff was sufficiently distinguished and that “although differing expert opinions as to the necessity and possible deleterious effect of the proposed revetment were presented, ample evidence is contained in the record which supports the Board’s decision.” Petitioner is appealing the Court’s determination to the Appellate Division.

A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.

Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in a case from the Town of East Hampton, discussed earlier this year by Long Island Land Use and Zoning Blog Contributor Anthony S. Guardino.  In the East Hampton case, the Town of East Hampton Zoning Board of Appeals (the “East Hampton ZBA”) determined that a home-based dog-walking and pet-sitting business was a legal “home occupation” under the applicable zoning code.  In so deciding, the East Hampton ZBA found that such use met all of the regulations of the zoning code permitting home occupations, and it rejected the argument that the business would change the character of the neighborhood.

However, what is permitted in one municipality may be prohibited in another.  McFadden effectively illustrates that point.  In McFadden, the Petitioners are the owners of property in the upstate New York Town of Westmoreland (the “Town”).  They sought to lease a portion of their property for use as a dog training business.  The Westmoreland ZBA determined that such use did not meet the definition of a “home occupation” under the Town’s zoning code, and would only be permitted with a use variance.  The Westmoreland ZBA granted the use variance application subject to restrictions, such “that the business could entertain a maximum of six dogs at one time and could not provide for overnight boarding.”  The Petitioners brought an Article 78 proceeding seeking an order annulling the Board’s determination, arguing that no variance was required because the use conformed to existing code.  The Supreme Court denied the Petition, and the Petitioners appealed.

According to the Westmoreland Town Code a “home occupation” is “[a]n occupation or profession which . . . [i]s customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit”, subject to several other requirements and conditions (see Westmoreland Town Code § 180-2 [“Home Occupation”]).  Here, the Petitioners’ stated intention to lease their property for use as a dog training business rather than running the business themselves, undermined their argument in support of a “home occupation.”  Furthermore, the Court distinguished the Petitioners’ proposed commercial use of the property from the “ability to keep certain personal animals on their property as pets or livestock,” which is permitted.  Notably, that distinction is at odds with the position taken by the East Hampton ZBA, which effectively equated the two.

On appeal, the Fourth Department ultimately affirmed the lower court’s order upholding the Board’s determination that a dog training business was not one “customarily carried on in a dwelling unit,” and thus did not meet the applicable definition of “home occupation.”  Therefore, the Board’s requirement and issuance of the use variance and such reasonable restrictions was proper.

The different outcomes in these two cases, interpreting similar language in zoning codes, provide an example of how a particular fact can greatly impact a zoning determination.  It is important to be cognizant of all material facts when exercising property rights.